Barker v. Goodrich

• Citation: 649 F.3d 428
• Decision Date: 12 September 2011
• Docket Number: No. 10–3195.,10–3195.
• Parties: Jasen BARKER, Plaintiff–Appellant,v.Andrew GOODRICH; Kimberly Adams; Patrick Alston; Allan Casey; Robert Foster; Shawn Frye; Steven Gause; Thomas Hampton; Kevin Harrington; Aaron Rodgers; Deb Timmerman–Cooper; London Correctional Institution, Defendants–Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

649 F.3d 428

Jasen BARKER, Plaintiff–Appellant,

v.Andrew GOODRICH; Kimberly Adams; Patrick Alston; Allan Casey; Robert Foster; Shawn Frye; Steven Gause; Thomas Hampton; Kevin Harrington; Aaron Rodgers; Deb Timmerman–Cooper; London Correctional Institution, Defendants–Appellees.

No. 10–3195.

United States Court of Appeals, Sixth Circuit.

Argued: April 26, 2011.Decided and Filed: Aug. 10, 2011.Rehearing Denied Sept. 12, 2011.

ARGUED: Christopher L. Trolinger, Farlow & Associates LLC, Dublin, Ohio, for Appellant. Jason Michael Fuller, Office of the Ohio Attorney General, Columbus, Ohio, for Appellees. ON BRIEF: Christopher L. Trolinger, Beverly J. Farlow, Farlow & Associates LLC, Dublin, Ohio, for Appellant. Melissa Montgomery, Office of the Ohio Attorney General, Columbus, Ohio, for Appellees.Before: COLE and STRANCH, Circuit Judges; ZATKOFF, District Judge. ^*

OPINION

COLE, Circuit Judge.

On February 4, 2007, Plaintiff–Appellant Jasen Barker failed to stand during the 4:00 p.m. count. He was then pulled from his cell at the London Correctional Institute, handcuffed, and placed in an observation cell where he remained for over twelve hours with his hands restrained behind his back. During this time, Barker was forced to maintain an awkward and uncomfortable position, missed a meal, and was unable to push a button for water or pull down his pants to use the toilet; his requests for mental health services went unanswered. Barker filed this action under 42 U.S.C. § 1983 against Defendants–Appellees the London Correctional Institution (“LCI”) and eleven of its current and former employees (collectively, “Defendants”) for violations of his Eighth Amendment rights. Defendants moved for summary judgment and the district court granted the motion, finding that all Defendants were entitled to qualified immunity. For the following reasons, we AFFIRM in part and REVERSE in part the judgment of the district court and REMAND for further proceedings.

I. BACKGROUND

The events that took place on February 4, 2007 are highly disputed. For the purposes of this appeal, the facts are construed in the light most favorable to Barker. Those facts were described by the district court as follows:

According to Mr. Barker, soon after he arrived at the London Correctional Facility, defendant Andrew Goodrich, a corrections officer, started to harass him....

Mr. Barker was being treated for depression. His medications had a tendency to make him drowsy. He would occasionally be sleeping during the four o'clock count. Usually, the corrections officer conducting the count in his area would wake him up and tell him he had to be sitting up during count. On the day in question, that did not happen. Rather, he was awakened and immediately escorted to the Captain's office. He was not sure, even after arriving there, why he was being disciplined, but learned at some point that he was going to get a ticket for refusing to sit up during the count.

Mr. Barker believed that the shift officers had been told by his mental health treater, Dr. LeClaire, that his medications were causing him to sleep during the count and that he did not have to sit up for it. He was upset by the ticket and by the fact that he was going to be taken to isolation. One of the questions that is routinely asked to inmates being taken to isolation is whether they intend to harm themselves. He refused to answer the question. For that reason, he was sent to an observation cell (a “constant watch” cell) so that a guard could watch him at all times.

Mr. Barker had just come out of a similar cell at a different institution when his deposition was taken. He said the correct procedure for taking an inmate to the observation cell was to put him in a processing cell first where his handcuffs and clothing would be removed and a suicide gown and blanket would be issued. That did not happen at London.

Barker v. Goodrich, No. 2:07–cv–946, 2010 WL 55719, at *2 (S.D.Ohio Jan. 4, 2010).

While Barker was in the processing room, before he was placed in the observation cell, an officer asked to remove the cuffs; Barker asked to see mental health first because he was afraid of going into the cell. The officer waved off Barker's request for mental health services, and a short while later Barker was placed in the observation cell still handcuffed and wearing his original clothing. No officer, including the two responsible for the constant watch, asked or offered to remove the handcuffs again until the handcuffs were removed the next morning around 8:00 a.m.

During the time he was in the cell and in handcuffs, he was not able to urinate or get a drink of water. His shoulders became stiff and he could not sit down or lie down comfortably, so he mostly stood up. Even at the time of his deposition, he had problems with his wrists, especially while writing letters.

Id. at *2.

Barker brought suit against Defendants in the United States District Court for the Southern District of Ohio under 42 U.S.C. § 1983, alleging violations of his Eighth Amendment rights. The parties agreed to refer the case to the magistrate judge. Defendants moved for summary judgment, asserting that Barker suffered no injury, there was no constitutional violation, and several Defendants had no direct involvement with the situation. Defendants also asserted that the employee Defendants were entitled to Eleventh Amendment immunity in their official capacity, and all Defendants were entitled to qualified immunity. On January 10, 2010, the magistrate judge granted summary judgment to all Defendants on the basis of qualified immunity, finding that the evidence established a constitutional violation, but the right at issue was not clearly established.

Barker timely appealed.

II. ANALYSIS

A. Standard of Review

This Court reviews the district court's grant of summary judgment de novo. Gen. Motors Corp. v. Lanard Toys, Inc., 468 F.3d 405, 412 (6th Cir.2006). A moving party is entitled to summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law.” Binay v. Bettendorf, 601 F.3d 640, 646 (6th Cir.2010) (internal quotation marks omitted). In reviewing a summary judgment motion, this Court views the evidence and reasonable inferences therefrom “in the light most favorable to” the non-moving party. Id.; see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Barker brings his claims under 42 U.S.C. § 1983. To succeed on a § 1983 claim, Barker must demonstrate that a person acting under color of state law “deprived [him] of rights, privileges or immunities secured by the Constitution or laws of the United States.” Bennett v. City of Eastpointe, 410 F.3d 810, 817 (6th Cir.2005).

B. London Correctional Institute

First and foremost, the district court erred in granting qualified immunity to London Correctional Institute, which is not eligible for such immunity. See Kentucky v. Graham, 473 U.S. 159, 166–67, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). Assuming without deciding that LCI is an arm of the state, LCI could have asserted sovereign immunity under the Eleventh Amendment, which protects states from being sued in federal court by their own citizens, citizens of other states, and foreigners. See Alden v. Maine, 527 U.S. 706, 712–13, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999); Thiokol Corp. v. Dep't of Treasury, 987 F.2d 376, 381 (6th Cir.1993). The burden of establishing Eleventh Amendment immunity lies with the state, and the defense is waived if it is not raised. See Gragg v. Ky. Cabinet for Workforce Dev., 289 F.3d 958, 963 (6th Cir.2002); see also Nair v. Oakland Cnty. Cmty. Mental Health Auth., 443 F.3d 469, 476 (6th Cir.2006). Although Defendants nominally raised the Eleventh Amendment as a defense in their answer to Barker's complaint, they did not identify the claims or parties to which it applied, nor did they assert that LCI was entitled to this defense in their motion for summary judgment before the district court or their briefs on appeal. As a result of LCI's failure to assert this defense, it has been waived. See McPherson v. Kelsey, 125 F.3d 989, 995 (6th Cir.1997) ( “[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.” (internal quotation mark omitted)). Consequently, LCI is entitled to neither qualified nor sovereign immunity, and the district court's grant of summary judgment to LCI is REVERSED.¹

C. Claims for Monetary Damages Against Defendants in their Official Capacities

Barker also named as defendants one prison employee in her official capacity and ten prison employees in both their official and individual capacities. Defendants sued in their official capacities are not eligible for qualified immunity. Graham, 473 U.S. at 167, 105 S.Ct. 3099. However, to the extent Barker seeks monetary damages from these employees in their official capacities, his claims are barred by the Eleventh Amendment. Thiokol Corp., 987 F.2d at 381. Defendants asserted this defense before the district court; although they have not raised the issue on appeal, the district court's erroneous grant of qualified immunity gave them neither reason nor opportunity to do so. As a result, we find the defense not to be waived, and AFFIRM the district court's grant of summary judgment to Defendants on the § 1983 claims for monetary damages against Defendants in their official capacities. To the extent Barker seeks declaratory and injunctive relief against Defendants in their official capacities, the suit may proceed. Cf. Will, 491 U.S. at 71 n. 10, 109 S.Ct. 2304 (“ ‘[O]fficial-capacity actions for prospective relief are not treated as actions against the State.’ ” (quoting Graham, 473 U.S. at 167 n. 14, 105 S.Ct. 3099)).

D. Qualified Immunity

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